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Is a Death in the Family a Material & Substantial Change: Opinions, Feb. 8, 2018

The First District Court of Appeals released an opinion in Smith v. Karanja, No. 01-16-01004-CV, reversing the trial court’s modification allowing the mother to travel internationally with the child.

Father and mother divorced on April 29, 2016. On July 5, 2016, mother filed a mod, seeking modification of the final decree to include an international travel provision. In the original order mother and father were appointed JMCs of the child, but the order did not address the child’s ability to travel abroad. The mother contended that there had been a substantial change in circumstances, that it was in the child’s best interest to travel with her to Kenya, where the mother was born, because the mother’s father had recently died and mother wished to attend a memorial service. She requested temporary orders, specifically that the father execute the consent form for the child to travel abroad. Father objected, asking the child not be allowed to travel abroad until the child turned 16 because he believed she would take the child to Kenya (a non-Hague country) and never return.

After an evidentiary hearing, the trial court granted the mod. The father requested FF/CL, but there were no FF/CL in the appellate record. On December 18, 2016, the trial court signed the order which included passport and international travel language and required either parent to execute a written consent form to travel abroad and any other form. The trial court also found there was credible evidence of a potential risk of international abduction of the child by the mother and ordered mother to post a $75,000 bond and detailed procedures for notification to the U.S. State Department and to the relevant foreign consulate or embassy before she could travel with the child.

On appeal, father represented himself and argued the trial court abused its discretion in granting the mod without imposing adequate international abduction prevention measures. He did not provide a reporter’s record on appeal.

The Court of Appeals ruled that traveling to Kenya to visit mother’s family was an eventuality which was anticipated before the parties’ divorce. In fact, while the divorce was pending father filed a motion addressing the need to determine whether mother should be permitted to travel abroad with the child and requesting the child’s passport be held by the court while the divorce was pending. Thus, international travel was an issue before the decree was entered and could not constitute a change in circumstances after the divorce decree was entered.

Yet, the Court of Appeals admitted, “[W]e cannot say, in the absence of a record, that the death of [mother]’s father and [the child]’s grandfather and the planned memorial service was not a substantial and material change in circumstances. Without the benefit of a record, we do not know the circumstances of his death or his health at the time of the divorce.” Nonetheless, the COA found that the trial court’s modification order granted mother carte blanche permission to travel anywhere in the world and was not tailored to the death of the child’s grandfather. “In other words, the relief the trial court may grant must be somehow connected to the changed circumstance.”

The COA held the trial court erred in two ways: 1) By granting the international travel modification because the mother’s desire for the child to travel internationally was not a material and substantial change; and 2) the order granted relief far broader than the relief requested. The COA reversed the modification order and rendered judgment in favor of father, vacating the modification order.